FINAL COPY 309 Ga. 650
S20A1024. STUDIVANT v. THE STATE.
BLACKWELL, Justice.
Marquis Lejon Studivant was tried by a Hall County jury and
convicted of murder and other crimes in connection with the fatal
shooting of Dennis Gayton. Studivant appeals, claiming that the
evidence is insufficient to sustain his convictions, that the trial court
erred when it denied his motion to suppress evidence that was
collected from a vehicle he was driving around the time of his arrest,
and that he was denied the effective assistance of counsel. Upon our
review of the record and briefs, we see no error and affirm.1
1 Gayton was shot in April 2017. A Hall County grand jury indicted Studivant and Tadrick Osborne in November 2017, charging each of them with murder during the commission of a felony and conspiracy to sell synthetic marijuana. Studivant alone was charged with two additional counts of felony murder, attempted armed robbery, two counts of aggravated assault, cruelty to children, the unlawful possession of a firearm during the commission of a crime, and the unlawful possession of a firearm by a convicted felon. Osborne pleaded guilty to lesser charges and testified in August 2018 at Studivant’s trial. The jury found Studivant guilty of all charges, and the trial court sentenced him to imprisonment for life for felony murder predicated on conspiracy to sell synthetic marijuana, a concurrent term of imprisonment for 1. Viewed in the light most favorable to the verdict, the
evidence presented at trial shows that Studivant and Tadrick
Osborne were drug dealers in the Newtown neighborhood of
Gainesville. On the evening of April 4, 2017, Osborne had two bags
of synthetic marijuana, and he and Studivant agreed that Osborne
would sell one bag to a “dude named Mel” and that they would “go
somewhere and sell [the other bag] together.” Around 9:30 or 10:00
p.m., as Studivant and Osborne walked toward the location at which
they planned to meet “Mel,” Gayton drove up to them in his truck —
accompanied by his 15-year-old son — and said that he wanted to
buy drugs for $40. Studivant approached Gayton’s parked truck, and
when Gayton pulled out approximately $70, Studivant demanded all
twenty years for an aggravated assault upon Gayton’s son, and a consecutive term of imprisonment for five years for the unlawful possession of a firearm during the commission of a crime. The other firearm possession count was nolle prossed, the other felony murder counts were vacated by operation of law, and the trial court merged the remaining counts for sentencing purposes. (These mergers are not challenged on appeal, and we, therefore, decide nothing about them. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017).) Studivant timely filed a motion for new trial in August 2018, which he amended in April 2019. The trial court denied the motion in July 2019, Studivant filed a motion for an out-of-time appeal in December 2019, the trial court allowed an out-of-time appeal in January 2020, and Studivant timely filed a notice of appeal. The case was docketed in this Court for the April 2020 term and submitted for decision on the briefs. the money. When Gayton refused, Studivant pointed a handgun at
Gayton and his son, and Studivant fatally shot Gayton as Gayton
attempted to wrestle the gun from him. A man who knew Studivant
heard the gunshots and saw Studivant and Osborne flee the scene
together. Studivant later confessed to his ex-boyfriend that he killed
Gayton, although he claimed that he did so in self-defense. Gayton’s
son identified Studivant as the man who killed his father.
Studivant claims that the evidence is insufficient to sustain his
convictions because there was no evidence that he and Osborne
conspired to sell synthetic marijuana and because Osborne’s
testimony was not corroborated, as required by OCGA § 24-14-8.
Both of these claims, however, lack merit. The State may prove a
conspiracy “by showing that two or more persons tacitly came to a
mutual understanding to pursue a criminal objective,” and “[w]here
there is no evidence of an express agreement, an inference that two
or more people tacitly came to a mutual understanding to commit a
crime can be drawn from the nature of the acts done, the relation of
the parties, the interest of the alleged conspirators, and other circumstances.” Chavers v. State, 304 Ga. 887, 891-892 (2) (823
SE2d 283) (2019) (citations and punctuation omitted). Here, there
was evidence that Studivant and Osborne were in the business of
selling synthetic marijuana together (with Osborne acting as
Studivant’s “boss”), and Osborne testified that he and Studivant
were walking in Newtown on the evening of April 4, 2017, with the
understanding that Osborne would sell one of the bags of synthetic
marijuana to “Mel” and that Studivant and Osborne would sell the
other bag “together.” Studivant and Osborne were observed together
by multiple witnesses that evening (including one who saw them
fleeing from the crime scene together), and only Studivant was
described as carrying a bag (which the jury could infer contained the
drugs that the men had conspired to sell). The evidence is sufficient
under the Due Process Clause of the Fourteenth Amendment of the
United States Constitution to authorize a rational trier of fact to find
beyond a reasonable doubt that Studivant was guilty of felony
murder predicated on a conspiracy to sell synthetic marijuana as
well as the other crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
As to Studivant’s claim under OCGA § 24-14-8 that the State
failed to corroborate Osborne’s testimony, the record shows that
Studivant was identified by Gayton’s son as the man who fatally
shot his father, he was identified by an acquaintance as he fled the
crime scene, and he confessed to his ex-boyfriend that he had shot
Gayton. The jury was authorized to find that such evidence
sufficiently corroborated Osborne’s testimony. See Crawford v.
State, 294 Ga. 898, 901 (1) (757 SE2d 102) (2014) (“Once the State
adduces [corroborating] evidence, it is peculiarly a matter for the
jury to determine whether the evidence sufficiently corroborates the
accomplice’s testimony and warrants a conviction.” (citation and
punctuation omitted)).
2. Studivant contends that the trial court erred when it denied
a motion to suppress evidence that was collected pursuant to a
search warrant from a vehicle that Studivant was driving shortly
before his arrest. In September 2017 — after a warrant was issued for his arrest — officers learned that Studivant was driving a
Chevrolet Tahoe in Newtown. Officers found the Tahoe, and
Studivant briefly led the officers on a chase before he crashed the
Tahoe, fled on foot, and ultimately was captured and arrested. Soon
thereafter, an investigator secured a search warrant for the crashed
Tahoe, which resulted in the discovery of a rose-colored iPhone, the
data on which was later searched pursuant to a second warrant.
Studivant filed a motion to suppress evidence collected from the
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FINAL COPY 309 Ga. 650
S20A1024. STUDIVANT v. THE STATE.
BLACKWELL, Justice.
Marquis Lejon Studivant was tried by a Hall County jury and
convicted of murder and other crimes in connection with the fatal
shooting of Dennis Gayton. Studivant appeals, claiming that the
evidence is insufficient to sustain his convictions, that the trial court
erred when it denied his motion to suppress evidence that was
collected from a vehicle he was driving around the time of his arrest,
and that he was denied the effective assistance of counsel. Upon our
review of the record and briefs, we see no error and affirm.1
1 Gayton was shot in April 2017. A Hall County grand jury indicted Studivant and Tadrick Osborne in November 2017, charging each of them with murder during the commission of a felony and conspiracy to sell synthetic marijuana. Studivant alone was charged with two additional counts of felony murder, attempted armed robbery, two counts of aggravated assault, cruelty to children, the unlawful possession of a firearm during the commission of a crime, and the unlawful possession of a firearm by a convicted felon. Osborne pleaded guilty to lesser charges and testified in August 2018 at Studivant’s trial. The jury found Studivant guilty of all charges, and the trial court sentenced him to imprisonment for life for felony murder predicated on conspiracy to sell synthetic marijuana, a concurrent term of imprisonment for 1. Viewed in the light most favorable to the verdict, the
evidence presented at trial shows that Studivant and Tadrick
Osborne were drug dealers in the Newtown neighborhood of
Gainesville. On the evening of April 4, 2017, Osborne had two bags
of synthetic marijuana, and he and Studivant agreed that Osborne
would sell one bag to a “dude named Mel” and that they would “go
somewhere and sell [the other bag] together.” Around 9:30 or 10:00
p.m., as Studivant and Osborne walked toward the location at which
they planned to meet “Mel,” Gayton drove up to them in his truck —
accompanied by his 15-year-old son — and said that he wanted to
buy drugs for $40. Studivant approached Gayton’s parked truck, and
when Gayton pulled out approximately $70, Studivant demanded all
twenty years for an aggravated assault upon Gayton’s son, and a consecutive term of imprisonment for five years for the unlawful possession of a firearm during the commission of a crime. The other firearm possession count was nolle prossed, the other felony murder counts were vacated by operation of law, and the trial court merged the remaining counts for sentencing purposes. (These mergers are not challenged on appeal, and we, therefore, decide nothing about them. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017).) Studivant timely filed a motion for new trial in August 2018, which he amended in April 2019. The trial court denied the motion in July 2019, Studivant filed a motion for an out-of-time appeal in December 2019, the trial court allowed an out-of-time appeal in January 2020, and Studivant timely filed a notice of appeal. The case was docketed in this Court for the April 2020 term and submitted for decision on the briefs. the money. When Gayton refused, Studivant pointed a handgun at
Gayton and his son, and Studivant fatally shot Gayton as Gayton
attempted to wrestle the gun from him. A man who knew Studivant
heard the gunshots and saw Studivant and Osborne flee the scene
together. Studivant later confessed to his ex-boyfriend that he killed
Gayton, although he claimed that he did so in self-defense. Gayton’s
son identified Studivant as the man who killed his father.
Studivant claims that the evidence is insufficient to sustain his
convictions because there was no evidence that he and Osborne
conspired to sell synthetic marijuana and because Osborne’s
testimony was not corroborated, as required by OCGA § 24-14-8.
Both of these claims, however, lack merit. The State may prove a
conspiracy “by showing that two or more persons tacitly came to a
mutual understanding to pursue a criminal objective,” and “[w]here
there is no evidence of an express agreement, an inference that two
or more people tacitly came to a mutual understanding to commit a
crime can be drawn from the nature of the acts done, the relation of
the parties, the interest of the alleged conspirators, and other circumstances.” Chavers v. State, 304 Ga. 887, 891-892 (2) (823
SE2d 283) (2019) (citations and punctuation omitted). Here, there
was evidence that Studivant and Osborne were in the business of
selling synthetic marijuana together (with Osborne acting as
Studivant’s “boss”), and Osborne testified that he and Studivant
were walking in Newtown on the evening of April 4, 2017, with the
understanding that Osborne would sell one of the bags of synthetic
marijuana to “Mel” and that Studivant and Osborne would sell the
other bag “together.” Studivant and Osborne were observed together
by multiple witnesses that evening (including one who saw them
fleeing from the crime scene together), and only Studivant was
described as carrying a bag (which the jury could infer contained the
drugs that the men had conspired to sell). The evidence is sufficient
under the Due Process Clause of the Fourteenth Amendment of the
United States Constitution to authorize a rational trier of fact to find
beyond a reasonable doubt that Studivant was guilty of felony
murder predicated on a conspiracy to sell synthetic marijuana as
well as the other crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
As to Studivant’s claim under OCGA § 24-14-8 that the State
failed to corroborate Osborne’s testimony, the record shows that
Studivant was identified by Gayton’s son as the man who fatally
shot his father, he was identified by an acquaintance as he fled the
crime scene, and he confessed to his ex-boyfriend that he had shot
Gayton. The jury was authorized to find that such evidence
sufficiently corroborated Osborne’s testimony. See Crawford v.
State, 294 Ga. 898, 901 (1) (757 SE2d 102) (2014) (“Once the State
adduces [corroborating] evidence, it is peculiarly a matter for the
jury to determine whether the evidence sufficiently corroborates the
accomplice’s testimony and warrants a conviction.” (citation and
punctuation omitted)).
2. Studivant contends that the trial court erred when it denied
a motion to suppress evidence that was collected pursuant to a
search warrant from a vehicle that Studivant was driving shortly
before his arrest. In September 2017 — after a warrant was issued for his arrest — officers learned that Studivant was driving a
Chevrolet Tahoe in Newtown. Officers found the Tahoe, and
Studivant briefly led the officers on a chase before he crashed the
Tahoe, fled on foot, and ultimately was captured and arrested. Soon
thereafter, an investigator secured a search warrant for the crashed
Tahoe, which resulted in the discovery of a rose-colored iPhone, the
data on which was later searched pursuant to a second warrant.
Studivant filed a motion to suppress evidence collected from the
Tahoe (including what he claimed was incriminating evidence
contained on the iPhone), asserting that the warrant to search the
Tahoe was not supported by probable cause.
But we need not decide whether the search warrant for the
Tahoe was lawful because the record shows that the incriminating
iPhone evidence about which Studivant complains was not found on
the (rose-colored) iPhone discovered in the Tahoe, but rather on a
black iPhone that was taken from Studivant’s person when he was
arrested (and that was searched pursuant to a warrant that is not
challenged on appeal by Studivant). Because no evidence collected from the Tahoe (either directly or indirectly via the search of the
rose-colored iPhone) was admitted at trial, this enumeration of error
is without merit. See Lawler v. State, 276 Ga. 229, 233 (4) (d) (576
SE2d 841) (2003).
3. Finally, Studivant claims that he was denied the effective
assistance of counsel when his trial lawyer failed to call Studivant’s
girlfriend as an alibi witness. To prevail on a claim of ineffective
assistance, Studivant must prove both that the performance of his
lawyer was deficient and that he was prejudiced by this deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687 (III)
(104 SCt 2052, 80 LE2d 674) (1984). To prove that the performance
of his lawyer was deficient, Studivant must show that his lawyer
performed his duties at trial in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms. See id. at 687-688 (III) (A). See also Kimmelman
v. Morrison, 477 U.S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d 305)
(1986). And to prove that he was prejudiced by the performance of
his lawyer, Studivant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694 (III) (B). This burden is a heavy one, see Kimmelman,
477 U.S. at 382 (II) (C), and Studivant has failed to carry it.
At the hearing on Studivant’s motion for new trial, his
girlfriend testified that she was living with Studivant and their
respective children on the day that Gayton was killed, she left
Studivant and the children at their house “roughly around 3:00,
maybe 4:00” that afternoon to go to work, she called “around supper
time” to check on the children, and she “came back home from work”
later that night to find that Studivant was at the house. On cross-
examination, the girlfriend testified that she “want[ed] to say” that
she returned home from work between 10:00 and 11:00 p.m., but she
also acknowledged that — whenever she returned home — “the
police cars were already there and there were lights everywhere as
a result of the investigation into the murder.”
Studivant’s trial lawyer testified that his investigator spoke to the girlfriend at least twice about potential alibi testimony, but the
lawyer ultimately decided not to call the girlfriend as a witness at
trial. Given that the girlfriend’s testimony would have been only
that Studivant was present at the house at an uncertain amount of
time both before and after the killing (and that it “wasn’t too far”
between the crime scene and the house), her testimony would not
clearly have established an alibi for Studivant at the time of the
shooting, and Studivant has not shown that his lawyer’s decision not
to call the girlfriend as a witness was constitutionally deficient. See
Shockley v. State, 297 Ga. 661, 665-666 (3) (777 SE2d 245) (2015)
(deficient performance not established where lawyer failed to call
defendant’s mother as an alibi witness because mother was
ambiguous and uncertain about time frames and jury was unlikely
to give her testimony much credit because of her relationship with
the defendant).
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 24, 2020. Murder. Hall Superior Court. Before Judge Bearden.
James K. Luttrell, for appellant.
Lee Darragh, District Attorney, Harold A. Buckler, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Meghan H. Hill, Assistant
Attorney General, for appellee.